U.S. v. Dean

• Decision Date: 02 December 2002
• Docket Number: No. Civ. 02-102-B-S.,No. CRIM. 00-50-B-S.,CRIM. 00-50-B-S.,Civ. 02-102-B-S.
• Citation: 231 F.Supp.2d 382
• Parties: UNITED STATES of America, v. Adam A. DEAN, Defendant
• Court: U.S. District Court — District of Maine

231 F.Supp.2d 382

UNITED STATES of America, v. Adam A. DEAN, Defendant

No. CRIM. 00-50-B-S.

No. Civ. 02-102-B-S.

United States District Court, D. Maine.

December 2, 2002.

Adam A. Dean, Butner, NC, pro se.

F. Mark Terison, Office of the U.S. Attorney, Portland, ME, Michael D. Love, U.S. Attorney's Office, Bangor, ME, for U.S.

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

SINGAL, District Judge.

No objection having been filed to the Magistrate Judge's Recommended Decision filed November 5, 2002, the Recommended Decision is accepted.

Accordingly, it is ORDERED that the 28 U.S.C. § 2255 Petition is DISMISSED.

RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

KRAVCHUK, United States Magistrate Judge.

On April 4, 2001, a jury found Adam Dean guilty of receiving, possessing, and transporting child pornography in violation of three subsections of 18 U.S.C. § 2252A(a). On July 25, 2001, Dean was sentenced to three concurrent eighty-eight-month terms of imprisonment. Dean took no direct appeal. Herein I address a motion for habeas relief Dean filed pursuant to 28 U.S.C. § 2255. The motion raises a single ground: Dean contends that his 18 U.S.C. § 2252A(a) conviction is improper in light of the United States Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), a case that held that 18 U.S.C. § 2252A's proscription of the receipt, possession, and/or transportation of virtual child pornography and (otherwise legal) pornographic material pandered as child pornography violated the First Amendment of the United States Constitution. (Docket No.40.) The United States has filed a response (Docket No. 42) and has supplemented the record with the transcripts of Dean's trial (Docket No. 44). I now recommend that the Court DENY Dean's motion because he failed to raise this challenge before trial, at trial, or in a direct appeal.

Discussion

Dean's single Free Speech Coalition based ground is cognizable in this habeas motion as § 2255 allows challenges "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255 ¶ 1. Dean's description of his challenge is bare-boned. In support of his contention that Free Speech Coalition entitles him to relief he provides the following by way of supporting facts: "I don't believe the images on my computer are actual children." (Sec. 2255 Mot. at 5.)

The United States' argument for leaving Dean's conviction untouched in the face of Free Speech Coalition is almost equally skeletal. It baldly states that the uncontested record shows that "Dean's offenses involved `[a]t least sixteen image ... [of] prepubescent minors or minors under the age of 12.'" (Gov't Resp. at 6, quoting presentence report.) It states that these sixteen images "depict actual prepubescent children" and that any "contrary belief is thus refuted by the record." (Id.) Based on these assertions the United States contends that Dean's "conduct was criminal and beyond First Amendment protection," and, thus, the Free Speech Coalition decision is inapplicable. (Id. at 7.)

Resolution of this matter requires a little more analysis. Dean was indicted and found guilty for violations of 18 U.S.C. § 2252A, which, generally stated, makes it a federal crime to receive, transport, sell, possess, or reproduce "child pornography." When Dean was indicted and tried 18 U.S.C. § 2256 defined four classes of child pornography susceptible to 18 U.S.C. § 2252A prosecution:

"child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where —

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or

(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct[.]

18 U.S.C. § 2256(8).

In 1999, the First Circuit, reversing the District Court, rejected a challenge to the subsection (B) definition of child pornography, concluding that it was neither vague nor overbroad. United States v. Hilton, 167 F.3d 61 (1^st Cir.1999), reversing United States v. Hilton, 999 F.Supp. 131 (D.Me.1998) (Carter, Dist. J.). The United States Supreme Court declined to grant Hilton's petition for certiorari review. Hilton v. United States, 528 U.S. 844, 120 S.Ct. 115, 145 L.Ed.2d 98 (1999) (Mem.).

The First Circuit's opinion was not the final word. The Supreme Court majority in Free Speech Coalition held that subsections (B) and (D) of § 2256(8) were unconstitutional because the severe criminal penalties attached impinged rights to free speech protected by the First Amendment. With regards to subsection (B)'s prohibition of virtual pornography the Court concluded that, in reaching materials that were made without the involvement of children, it "abridge[d] the freedom to engage in a substantial amount of lawful speech" and was therefore "overbroad and unconstitutional," 122 S.Ct at 1405. With respect to subsection (D)'s prohibition on the possession of materials pandered as child pornography but which are known to be mislabeled as such, the Court concluded that this provision was "substantially overbroad." Id. at 1406. In resolving the Circuit split generated by the Ninth Circuit's opinion, the Supreme Court noted that four other Courts of Appeals, including the First Circuit in Hilton, had concluded that the provisions challenged were constitutional. Free Speech Coalition, 122 S.Ct. at 1398 (citing United States v. Fox, 248 F.3d 394 (5th Cir.2001); United States v. Mento, 231 F.3d 912 (4th Cir.2000); United States v. Acheson, 195 F.3d 645 (C.A.11 1999); Hilton, 167 F.3d 61).

Generally, a new constitutional rule announced by the Supreme Court does not apply retroactively to cases on collateral review under the finality rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Although Free Speech Coalition was decided after Dean's conviction, the Court can apply it retroactively to Dean's motion because Supreme Court decisions, like Free Speech Coalition, that "decide the meaning of criminal statute enacted by Congress" are not subject to Teague's bar. Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). One judge in the District of Maine has already reached this conclusion with respect to Free Speech Coalition-based § 2255 challenges. United States v. Oakes, 224 F.Supp 2d. 296, 298 (D.Me.2002) (Carter, Dist. J.); see also id. at 298 n. 3 (observing that if Teague did apply — in that Free Speech Coalition was considered a new rule of criminal procedure — it would fall within Teague's second exception to non-retroactivity because it places certain conduct beyond the authority of Congress to proscribe).

The record pertaining to Dean's Free Speech Coalition challenge is as follows. In an apparent tactical move to limit the amount of evidence in front of the jury pertaining to the content of the images attributed to Dean, counsel stipulated that sixteen images "are, or appear to be[,] visual depictions of minors engaging in sexually explicit conduct." (Gov't Resp. Ex.) The Court's instructions were crafted and, reviewed by both sides, in light of the broad and alternative definitions permitted under the pre-Free Speech Coalition 18 U.S.C. § 2256(8) parameters. Vis-à-vis the definition of child pornography, the jury was instructed as follows:

In relevant part, federal law defines child pornography as any visual depiction of sexually explicit conduct where, one, the visual depiction is or appears to be of a minor engaging in sexually explicit conduct; or, two, such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexual — sexually explicit conduct; or, three, such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.

(Tr. at 543; see also id. at 28.) The Court then told the jury that the parties had stipulated that Government Exhibits 3-A through 3-T "are or appear to be visual depictions of minors engaging in sexually explicit conduct" (id. at 545), consequently they had to accept the stipulation as fact (Id. at 532). (See also id. at 592-94.) With respect to the requirement that the United States prove that Dean knowingly possessed the images, the Court instructed that the jury must conclude that he not only "knowingly possessed the visual images, but that he did so knowing that the subjects of those images were, in fact, appeared to be or advertised, promised, presented, or described as minors engaging in sexually explicit conduct." (Id. at 538-39, see also id. at 54, 541.) The parties did not object to this part of the Court's instructions. (Id. at 475, 477, 487.) Indeed throughout the trial the parties proceeded on the assumption that this was the correct definition under federal law and with the stipulation in mind. (See id. at 48, 67.)¹

Dean's Free Speech Coalition challenge, therefore, could have some foothold in the habeas context in that he was convicted in reliance on a definition of child pornography that the Supreme Court has ruled is unconstitutional.² However, though the United States inexplicably does not raise the concern, see United States v. Wiseman, 297 F.3d 975, 979 (10^th Cir....